Justice Stevens and the Supremacy of Judge-made Law

Terry Eastland

April 9, 2010 6:38 PM

Justice Stevens turned out to be one of those Republican appointees to the Court who “grew” during his tenure. That was nowhere more evident than in cases challenging the legality of racial preferences. Consider that in the landmark Bakke case (1978), Stevens wrote an opinion joined by three other justices finding that a medical school admissions quota violated Title VI of the Civil Rights Act of 1964. Here is how he began that opinion:

Section 601 of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C. § 2000d, provides: "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."

The University, through its special admissions policy, excluded Bakke from participation in its program of medical education because of his race. The University also acknowledges that it was, and still is, receiving federal financial assistance. . . . The plain language of the statute therefore requires affirmance of the judgment below. A different result cannot be justified unless that language misstates the actual intent of the Congress that enacted the statute or the statute is not enforceable in a private action.”

Justice Stevens went on to explain why “neither conclusion is warranted.” And in discussing the legislative history of Title VI, he noted “repeated assurances that the Act would be ‘colorblind’ in its application,” meaning that government may not say “yes” to one person, but “no” to another person, only because of the color of a person’s skin.

A year later in the Weber case the Court upheld a promotions quota challenged as a violation of Title VII of the Civil Rights Act, which forbids an employer from classifying employees on the basis of race. Justice Rehnquist filed a lengthy dissent making plain the statute’s meaning—namely that it is opposed to all discrimination “because of race.”

Stevens—for reasons unknown—didn’t participate in Weber. Maybe he had already started to grow. Eight years later in the Johnson case the Court upheld a public employer’s decision to hire on another ground forbidden by Title VII (sex). Concurring in the Court’s opinion, Stevens conceded that the Court had now interpreted the Civil Rights Act (meaning both Title VI and Title VII) “in a fundamentally different way” from the “absolute blanket prohibition against discrimination” that was its original meaning.

“The only problem for me is whether to adhere to an authoritative construction of the Act that is at odds with my understanding of the actual intent of the authors of the legislation. I conclude without hesitation that I must answer that question in the affirmative,” Stevens wrote. If you’re looking for a definition of judicial activism, there it is—the subordination of legislation intent to what the judges say.